Rosa Brooks is a Georgetown law professor, a former senior staffer in the Pentagon, and is married to an Army Special Forces officer. She has seen war through first-hand experience in Uganda as a field worker for Human Rights Watch, as the child of peace activists growing up during the Vietnam War, and from military bases in Afghanistan as part of a Pentagon rule of law team. She is uniquely qualified to speak knowledgeably and even-handedly about the curious state of contemporary American war.

War and Peace: Separate Spheres no Longer

Brooks’ 2017 book, How Everything Became War and the Military Became Everything, is an accessible, yet incisively wise look at the systematic struggles facing America’s military, and consequently, America’s democracy in the 21st century. Two fundamental concerns run throughout. The most basic considers the relationship between war and peace. Why have humans long sought to create distinctly different spheres for each? Why have those traditional boundaries eroded in today’s world? And, most importantly, do we need to reimagine the way we think of the relationship between war and peace? The second major theme that the book excels in discussing has to do with the rule of law. Brooks’ training in law is evident throughout the manuscript and she puts this background to especially good use when she suggests the questions we must ask ourselves about the relationship between domestic law, international law, and the often murky conditions of the 21st century battlefield.

What Set of Laws Apply?

For Brooks, the most important question for understanding the ethics of any potential warlike situation is to be able to determine whether the rules of war or the rules of peace apply. In Socratic fashion she notes that in peacetime killing is presumed to be unjustified, while in wartime it is usually considered lawful, provided it is against one’s enemy. If, though, war and peace are not distinct states any longer, but instead both exist simultaneously then how can we determine if a particular killing is justified. Take, for instance, Ron Paul’s 2013 filibuster about the drone program. After a known American citizen (albeit one who had joined an Al Qaeda affiliate) was killed in a drone strike Paul demanded that the Obama administration clearly spell out the legal justification for this killing. When the administration responded that the killing was a wartime act, Paul filibustered, demanding to know where the geographical boundaries of the administration’s definition stopped. In other words, Paul wanted to know if the government could kill a U.S. citizen on American soil, without a trial, if the citizen had joined an Al-Qaeda sleeper cell. The administration finally relented and admitted that it would have no legal justification for such an act. Rather than actually preventing a drone strike on a target in Ohio, what Paul’s political artistry did was gain a tacit admission from the administration that, in fact, it was not at all clear if the rules of war or the rules of peace applied to American citizens who had joined an enemy force, yet who were not engaged in active combat against American forces. This is but one of countless possible examples where this confusion is present.

More fundamentally, though, Brooks argues that we need to know when the rules of war apply if we are to have any hope of walking the tightrope of keeping needed secrecy, while also ensuring accountability in acts of war. One of Brooks’ critiques of the drone program, for instance, is that “wars are quintessential public acts,” yet the details of this program, including its scope, cost, and the way in which specific strikes are authorized are all hidden from most Americans. The drone program is representative of the type of confusion the country faces today when trying to regulate military matters: Brooks notes that the program is not secret, yet at the same time, the public does not really have much of the important information about it available to them. It’s neither a clearly covert operation, nor an overt wartime policy, but it is enacted on behalf of the people’s will without explicit consent from the people through their representatives.

Another challenge for separating war from peace in today’s world comes from the emerging ways in which wars are fought. Brooks cites the recent creation of the military’s newest major joint services organization, the U.S. Cyber Command. CYBERCOM, Brooks notes, consists largely of Americans in office buildings creating and cracking computer codes. Its most important members are not specialists in how to use firearms, many have no traditional military experience, and the nature of their work often resembles a mundane desk job. And yet, their work is on the frontier of real and potential conflicts with China, Russia, Iran, terrorist groups, and small bands of hackers. Is this war or is this peace? What set of rules apply to the employees of CYBERCOM as they do their jobs? For Brooks, the answer is unclear and that murkiness is an unavoidable problem.

Waging War in Murky Terrain

In addition to the legal and ethical problems with this murky state of affairs, Brooks also believes that the general blending of war and peace comes with strategic liabilities for the United States. In a chapter relating America’s drone program to the targeted killings on foreign soil of both the Putin and Pinochet regimes, Brooks writes:

I’m convinced that my former colleagues in the military, the Department of Defense, and the intelligence community are good people, acting in good faith.  Despite my rule of law concerns, I trust them to act carefully and responsibly, doing their best to avoid mistakes and not abuse their power. But there are a lot of other people in the world I don’t trust at all — and when the United States asserts a unilateral right to use force in secret and with little accountability outside the executive branch, we are essentially handing every repressive and unscrupulous regime in the world a playbook for how to violate sovereignty and literally get away with murder… Let’s not kid ourselves: the legal arguments that the United States is now making will now come back and bite us in the future.

For Brooks the legal currency the United States uses carries weight internationally. Put simply, if the United States is willing to argue that its assertion of national interest makes it legitimate to violate traditional norms of sovereignty others will follow suit. Even if we trust the U.S. government, Brooks argues, we ought not to trust the autocrats around the world who would find this new legal definition convenient to their purposes. This matters, in Brooks’ estimation, because when the United States sets a precedent it directly impacts what the international community considers acceptable for other states going forward.

There are domestic costs, too, that Brooks sees as flowing from the merged state of war and peace. The two most prominent are a fundamental disconnect between civilian and military experiences and an astronomical price tag to taxpayers. While the latter can be quantified with jaw dropping numbers (such as estimates that the Iraq and Afghanistan wars will end up costing $4 trillion or that the government spends almost $1 trillion annually on defense related activities), the former includes things that we cannot count: The pain and suffering of the endless deployments, psychological damage, and deaths that have come to military families over the past twenty years, a democratic society where the average civilian does not think much of the wars fought by its government and the average soldier feels alien to civilian life, and a situation where endless wars go on with unclear objectives, little progress, and literally countless civilian deaths in some places where America has intervened.

Furthermore, there is the ongoing moral problem of ongoing war for the soldiers we ask to fight it. The current American system of perpetual war places an unrelenting burden on the consciences of those special forces who are endlessly deployed to new battlefields, of those bureaucrats who are asked to constantly plan a new drone strike, and of those senior officers who have to strategically plan a war, with no clear objectives which are directed toward peace in mind.

Moving Forward

While the current picture Brooks paints sometimes feels bleak, she does offer some provocative suggestions for how we might begin to make things better. One suggestion is a program of universal service, where all young Americans would spend a mandatory one or two years working on projects that serve “national and global security.” Brooks imagines a broad range of possibilities, ranging from computer programming, to public health initiatives, to programs like the Peace Corps, both in the uniformed services and in civilian life. The goal with this program would be twofold. First, it would advance the United States’ security interests in a broad and systematic way. Second, it would help to bridge the divide of understanding and the disparity of cost bearing between America’s military and civilian populations. Brooks’ idea of universal service would purportedly provide bonding opportunities for citizens from different backgrounds working toward a common goal.

The more difficult, but more fundamentally important suggestion Brooks makes is that we “develop new rules and institutions to manage the paradoxes of perpetual war.” She does not think it is possible to go back to the days where war and peace can be divided into clearly separate categories. Rather than bemoaning this or accepting the current confusing state of things, Brooks suggests we go about collectively constructing new ways to think about war that will allow us to manage it better from ethical, legal, and practical standpoints. While this part of her argument is the vaguest it is the most provocative. I am not as sure as she is that we cannot revert to separating war and peace. If she is right that that is an impossible task, however, then she is right that the only way forward is to reimagine how we think about war and peace in fundamental ways.

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There are powerful reasons to be pessimistic about free inquiry and free speech on most campuses today. And I am not talking here about merely the obligation of schools to protect the talks of controversial speakers from being shut down—an obligation that flows from the First Amendment for state schools and from sound institutional principles for most private schools. But the academic mission requires more than that bare minimum. It should create an atmosphere where all views are welcomed so long as they are backed by reasons.

Today, four powerful currents threaten free speech and free inquiry. The first is the huge ideological imbalance on most campuses. The latest such study of faculty views comes from Harvard, where less than two percent of faculty define themselves as conservative. The most practical support for freedom of inquiry and speech as an enduring principle is the fear of censorship by one’s opponents. But it is almost inconceivable that any faculty member at Harvard or most other universities can even imagine a day when conservatives will have a plurality, let alone a majority of campus, and be in any position to make their own lives difficult.

Second, one of the most powerful justifications for free inquiry and free speech is that the competition between ideas leads to truth. But many leftist academics reject this premise. Postmodernists do not believe in truth. Marxists may believe in truth, but think the primary consideration in all relations is power. Even if such leftist academics are not a majority, they do constitute a substantial minority hostile to most widely accepted justifications for basic freedoms on campus.

Third, universities take institutional positions that discourage academics from considering, let alone stating, unorthodox positions on certain matters. Racial, ethnic and gender diversity is probably the most important such position, both because it is so pervasive and because it puts identity at the center of the modern university. Thus, it sustains a kind of identity politics within the university which naturally denigrates any principle, like that of free inquiry and free speech, which may undermine or challenge the assumptions of that politics.

Fourth, because of their own diversity policies and government regulations, modern universities employ many bureaucrats who set policies, displacing faculty governance. The bureaucratic mindset is, to put it mildly, not conducive to free speech and free inquiry. Unlike members of the faculty, academic bureaucrats are not engaged in research or inquiry. Instead, they are maximizing something else, like “inclusion” or compliance with their view of Title IX for which the values of free speech and inquiry may be at best irrelevant and at worse harmful. To paraphrase William F. Buckley, I would be rather ruled by first hundred faculty in the university directory than the first hundred bureaucrats found there.

It is hard to see how any of these phenomena are going to get better any time soon and until they do, free speech and free inquiry on campus will be endangered.

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During the late 19th century, a major reason for the creation of bureaucratic administration as an alternative to judicial administration was Congress’s determination that courts and the legal process did not implement statutes the way legislators wanted them executed. The rise of bureaucratic administration gave rise to institutional competition between the executive and judicial branch. As with market competition, however, it is not the competitors who benefit from competition but the consumer.

In this case, Congress is the consumer. Today, Congress has a choice whether to implement a statute through the legal system (that is, through a system of prosecutors or private litigants overseen by judges), or bureaucratically through the executive branch, with judicial oversight at one or two removes.

The ability of Congress to choose between administrative systems weakens the separation-of-powers system. Congress can choose which system of implementation best suits its desire for control and well as for policy. From Congress’s view, the two administrative systems rival each other.

When, as it must, a Congress empowers another institution to implement rules it creates, it faces a necessary principal-agent problem. There is always the possibility that either judges or agency leaders will pursue policy goals divergent from the legislature that authorized their power in the first place.

The politics of choice existed from the start of the rise of the modern administrative state. For example, the debate over the creation of the Interstate Commerce Commission, the first major regulatory agency, in 1887 centered on influence over legal and administrative outcomes. Two competing bills, the Cullom and Reagan bills, called for different enforcement mechanisms. The Senate supported the Cullom bill, which proposed enforcement by a commission, because Senate confirmation of commissioners would presumably nudge administrative outcomes toward Senate policy preferences. The opposing coalition supported the Reagan bill and enforcement through the legal system because they feared the Senate, and thus the railroads, would have too much control over the commission.

This element of legislative choice over which system of administration to use for statutes is often overlooked. When we discuss “delegation” we tend to think only delegation to the executive bureaucracy. More subtle, but no less real, is congressional delegation to the judiciary. And this isn’t just implementation and administration, Congress can impel judicial policy-making by writing more rather than less ambiguous laws. This is delegation to the judiciary.

While Supreme Court decisions, particularly decisions related to constitutional law, obsess scholars (and I include myself here), the day-to-day work of the judicial system comes in the thousands of trial and appellate courts, as the legal system implements and administers legislative enactments. Considering all of the trials at the national, state, and municipal level, the role of the judiciary as an administrative system certainly rivals bureaucratic administration, and may still dwarf it depending on the measure and the policy area.

Normative considerations aside, the political dimension of congressional delegation also helps explain some puzzles. For example, a standard account of the rise of bureaucratic administration is that it resulted from the need for expertise in implementing policy, expertise a legal process staffed with generalist judges and generalist lawyers could no longer supply.

This cannot explain the development of the administrative state in the 20th century. Akin to the arguments for bicameralism in which one chamber is peopled with individuals with more knowledge and expertise than those in the other chamber, it begs the question, why not just legislate using the really smart chamber? So, too, if the cause of the rise of bureaucratic administration rests on its expertise, then why does Congress continue to choose to administer laws through the legal system? If the bureaucracy is staffed with experts and the legal system with generalists, why not always implement through a bureaucracy? Something else must be going on than mere technocratic concerns.

That the bureaucratic state arose due more to political calculation than technocratic expertise, that Congress delegates to agencies when they are more politically compliant with congressional preferences than the judiciary, and delegates to the judiciary when the opposite occurs, only magnifies the separation-of-power concerns associated with the rise of the administrative state.

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Nebraska Senator Ben Sasse’s opening remarks last week at Brett Kavanaugh’s confirmation hearing focused attention on Congress delegating its own legislative power to the executive branch. The argument he developed regarding how promiscuous congressional delegation of its own power weakens the Constitution’s separation-of-powers system was important in itself – and is magnified by the visibility of the venue (even if it didn’t quite explain why judicial confirmation hearings became so politicized).

Sasse did not rest his separation-of-power concerns on mere formalism. He explained how congressional delegation creates hinders democratic accountability, and discussed the electoral motivation spurring Congress to delegate.

The most rousing part of Sasse’s remarks circled around his vigorous defense of Congress as the central political branch of the national government. Unlike the image of Congress that many commentators draw today in which they lament the loss of the ostensible collegiality of bygone eras (meaning the days when Democrats habitually steamrolled Republicans in Congress), Sasse painted a picture of Congress as the branch of government that should be partisan, loud, and rambunctious.

Amen to that.

More substantively, though, Sasse explained how moving the locus of policymaking from Congress to executive branch agencies sets policymaking at one more remove from voters. Given traditional liberal/Progressive complaints about the ostensibly undemocratic nature of the American separation-of-power system, one would think the century-long process by which national policy makers become increasingly immunized from democratic accountability would be a concern on the left as well as the right. Yet concerns with the rise of the administrative state, and the corresponding decrease in democratic accountability, meets only with silence on the left.

To be sure, in principle, moving of policy-making from the legislative branch to the executive branch in the U.S. need not represent a lessening in democratic accountability. Voters elect the President as well as Congress. Herein lies the significance of Sasse referring to the bureaucracy as the “fourth branch” of government. The rise of the merit system for the executive branch bureaucracy, as well as the development of independent commissions and agencies in the executive branch, has reified the antidemocratic character of the administrative state.

It’s useful to pause at this point, however, before moving on. After all, the move to the merit system and independent commissions historically sought to reduce cronyism and corruption in a patronage-based executive branch. Nonetheless, with more than a century’s worth of experience with a bureaucracy increasingly immunized from electoral accountability, it is doubtless time to revisit the Progressive promise of “neutral competence” in administration. At least since the public choice revolution, policymakers and scholars can no longer with justification treat administrators as black boxes that neutrally implement legislation.

After over a century of experience with independent executive boards and commissions, and almost a century of experience with the merit system in the national executive branch, it is appropriate to raise the large question, as Sasse did in his remarks, whether the country has moved too far in immunizing policy making from the vagaries of the democratic process. To be sure, we can concede there are costs to holding the entire executive branch electorally accountable. But so too are there real costs in immunizing the vast part of the executive branch from that accountability. As Sasse asked, but did not answer, are there ways for Congress to answer its need for administrative expertise without losing electoral accountability?

An irony in Sasse’s remarks, however, was his explanation that electoral concerns of legislators are what actually motivate Congress to cede power to the bureaucracy. The theory is well known and is called “blame shifting.” The idea holds that legislators seek to minimize exposure to voter disapproval by delegating policy decisions to the executive branch, whom legislators may then blame for adverse outcomes of the various policies. (The theory also implies legislators cede policy-making authority to the judiciary as well.)

While possible, explanations more parsimonious than blame shifting more plausibly account for Congress delegating its own power away from itself. There is no need to look beyond opportunity costs for legislators in time and staff to see incentives for legislators to delegate policy-making authority to other institutions: Each minute spent on writing specific legislation is a minute that could otherwise be spent on vote-getting constituency services, leadership-promoting institutional service, or writing and promoting other bills. Plus, bill writing is a public good among legislators in plural legislatures. This means individual legislators do not capture the full value of writing specific legislation, so the separate actions of individual legislators cannot be expected, without greater incentives, to provide the amount of legislative attention optimal for the institution.

Further, blame shifting places informational expectations on voters that almost none would meet. To wit, when in the voting booth, most voters will not discriminate between government action resulting from a legislative enactment and government action resulting from an administrative regulation that, in turn, resulted from a legislative enactment. And if a voter does have that knowledge, then the voter would also have knowledge that Congress delegated that power to the agency, and, contrary to the requirements of blame shifting, could therefore hold Congress accountable for its actions.

Still, a more parsimonious theory explaining why legislators give their power away provides only a minor repair to Sasse’s argument regarding why Congress delegates. It does not imperil his central argument that congressional delegation of its power to executive branch agencies, most of which are also effectively unaccountable to the elected president, has worked a significant shift in the Constitution’s separation-of-power system, and so has materially damaged the U.S. democratic system.

The post Ben Sasse on How the Administrative State Injures American Democracy appeared first on Law & Liberty.

With Justice Kavanaugh’s confirmation and the Senate staying in Republican hands, complaints abound about the “undemocratic” Senate. The thing is, there is a much more undemocratic branch of the government. And, no, I’m not talking about the Supreme Court. No elected official hires, confirms, or fires officials in this branch. Ever. Yet these government officials wield huge power over the everyday lives of Americans. These are executive branch officials who are not presidential appointees.

The number is huge. According to the US Office of Personnel Management, as of 2014, employment in the national government’s civilian agencies (that is, excluding defense) topped 1.3 million employees. The president appoints around 4,000 of this number. If we include state and local government employees (and exclude all teachers, in both K-12 and in state colleges and universities), local, state and national government employment exceeds 5 million as of 2014. Almost all of this employment subsists in the governments’ executive branches.

To be sure, it’s difficult to imagine cashiering the merit system in the national and state governments’ executive branches and moving back to something closer to a patronage system (although proposals exist). But that’s the point: If “democratic” governance is an absolute standard of political good and bad, then the part of government that most offends against that standard today is neither the Senate nor the courts—it is the vast part of the executive branch that is neither elected nor answers to elected officials. To complain about the elected U.S. Senate being “undemocratic” while ignoring the nation’s (and states’) unelected executive bureaucracies strains at the gnat while swallowing the camel.

Immunizing the vast part of the executive branch from accountability to elected officials was the manifest purpose of civil service reform and the move to the merit system in the late 19th century and the first half of the 20th century. This anti-democratic move was a hallmark of the Progressive movement over a century ago. Its anti-democratic implication is ironic given Progressive initiatives to make the Senate more democratic (through popular elections) and Progressive criticism of “undemocratic” judges.

Today, however, the U.S. Senate is drenched in democracy compared to the executive branch, 99.9 percent of which is now immunized from any electoral accountability. It’s hard to take seriously liberal and left criticism of an “undemocratic Senate” in the face of stony silence regarding a vastly less democratic executive bureaucracy.

Electoral accountability of the executive branch, the whole executive branch, is the reason the Constitution vests executive power in an elected president in the first place. Article II begins with the vestment clause, the straight-forward instruction that “The executive Power shall be vested in a President of the United States of America.”

In a 1789 speech in Congress on the president’s removal power, James Madison starts his discussion of constitutional principles stressing the significance that the president (“the first magistrate”) is elected by the people. The Constitution’s vestment clause, he suggests, is the mode by which the Constitution links the executive branch to the nation’s voters.

The elected president is the institutional linchpin by which unelected executive branch officials are held accountable to voters. That mechanism works, however, only if the president can hire and fire executive branch officials.

The Constitution, Madison observes, establishes that the president “should be responsible for the executive department.” He notes the critical connection between the president’s authority over executive branch officials and the president’s accountability before voters. “So far therefore as we do not make the officers who are to aid him in the duties of that department responsible to him, he is not responsible to his country.”

To be sure, Madison is speaking specifically about cabinet officials (the bill being debated would require Senate approval for the president to dismiss cabinet officials). The principles Madison identifies, however, extend to executive officials throughout the branch. Aside from textually stated exceptions to the president’s executive power (Madison mentions the Senate confirmation power), Madison reads the Constitution to mean “the legislature has no right to diminish or modify [the president’s] executive authority.

The power to hire and fire executive branch officials, except where the Constitution provides otherwise, is for Madison an essential feature of executive power: “I conceive that if any power whatsoever is in its nature executive it is the power of appointing, overseeing, and controlling those who execute the laws.”

To be sure, Madison remarks the executive trust is a “high one,” even “a dangerous one.” After a century of expanding executive power, Americans can easily harbor reservations about expanding this power any further. Especially if we were to re-recognize that vesting executive power in the president also necessarily means growing his control of the executive bureaucracy, those reservations might grow.

Madison responds, however, “I am not sure but it will be safer here than placed where some gentlemen suppose it ought to be.” Perhaps part and parcel with re-recognizing the president’s full constitutional power over the executive branch would be a broader understanding of the impeachment power. Madison acknowledges, “I own that I am not afraid to place my confidence in [the president], especially when I know he is impeachable for any crime or misdemeanor, before the Senate, at all time, and that at all events he is impeachable before the community at large every four years.”

We can and should worry about the size, scope and exercise of the president’s executive power. But we cannot do so by throwing away fundamental constitutional texts or principles. Recognizing the president’s executive authority extends over the entire executive branch is not merely a legal formalism. It is the very means by which the Constitution extends democratic control and accountability over the executive branch, over the whole executive branch.

The post The Least Democratic Branch Is Neither the Senate nor the Courts appeared first on Law & Liberty.

As a holdover from the Reagan administration, I confess to having found working for George H.W. Bush frustrating. With Reagan, there was a clear and simple direction to the bureaucracy—smaller government and deregulation. Fighting the Evil Empire was the watchword of foreign policy. In contrast, and particularly in domestic policy, President Bush sounded an uncertain trumpet, and some of the notes seemed to call for reversing direction. A “kinder and gentler America” suggested that the America Reagan was creating was unkind and maybe a little cruel, when in reality his focus on restoring economic growth and civic confidence was a tonic that should never be left to run dry.

And even the spirit of my office changed—not, I thought, for the better. In the Reagan Justice Department, the Office of Legal Counsel had been driven by jurisprudential principles like originalism and federalism. These principles were in a sense our clients. But under Bush, we focused on advancing messy policy interests and the jurisprudence became secondary. And in the department as whole, there was confusion on fundamental issues like civil rights, with people in favor of color-blindness battling with those who wanted race-conscious policies without direction from the top. To my mind, President Reagan had been a bold leader steering a steady course ahead toward classical liberal destinations. On domestic policy, George H.W. Bush seemed more like a senior bureaucrat, just trying to move an issue from his inbox to his outbox with the minimum of controversy and little concern for coherence. In part for these reasons, I resigned before the end of the term and headed to academia.

I have a much more favorable view of his presidency three decades later. That is the result, partly, of grading on a curve. He was a better President than anyone who came after. Unlike his son, he did not lead the nation into a disastrous war and grow the federal deficit. He did not aggrandize the state like Barack Obama. He not bring shame to the office like Bill Clinton or divide the nation with unpresidential conduct like President Trump. He was no Reagan, but at that time I did not realize that I can probably expect over my lifetime only one great President.

Second, I have better appreciation for the constraints of politics. Reagan could pursue a relatively radical program of liberty, because he was elected against the background of extreme government failure—particularly in the form of the Carter administration. But Reagan’s very success made further reforms seem less necessary and the barnacles of interest groups naturally reattached to government. Moreover, Bush faced a Democratic House and Senate that had been emboldened by gaining seats in the 1988 election.

Third, he did some things, particularly in foreign policy, affirmatively well—handling the end of the Cold War and removing Saddam Hussein from Kuwait. That does not mean I approve of all his actions. The budget deal was the single largest error, one that probably doomed his presidency, creating a fiscal contraction that led to a recession.

But I was a very young man in the Reagan administration, far more confident in the permeability of the world to the right ideas. As a much older man, I recognize that the substantial limits on political improvement. I am therefore far more grateful to George H.W. Bush, who did not inflict much harm and did some occasional good. That may not seem like much of an epitaph, but it is better than how honest epitaphs for most of our Presidents would read, let alone how most politicians in the world’s history will be remembered.

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Ross Douthat has called attention to a growing number of conservatives, particularly religious conservatives, who are calling for more state power to advance conservative ends. They see the state not as a potential oppressor but a “harmonizer,” of values. One even calls for conservatives to seek to become the “Party of the State,” and thus give up trying to restrain the administrative state but turn it into a battering ram against liberalism.

In a future post, I will discuss what I believe are errors in political philosophy of this new movement. Here my point is simpler and blunter. In our era, it is a sociological fantasy to believe that aggrandizing the state will lead to a revival of the values conservatives hold dear. The classes with entrenched control of the administrative process of the state lean strongly to the left and will do so for the foreseeable future. Empowering the administrative state is empowering left-liberalism.

Begin with the general administrative state. The data are clear: federal bureaucrats are to the left of the Democratic Party. They are already the party of state and cannot be dislodged. And that is not a surprise. Particularly at the highest levels, the bureaucrats are graduates of our elite universities, the most left-wing institutions in our society. The issues presented to the administrative state are framed by the press—also an overwhelmingly left-leaning group. Some of Trump’s complaints about the deep state are overblown, but he is certainly correct that it’s far more difficult for conservatives to turn the ship of state to the right. When I was in government, bureaucrats often undermined our programs.

Nothing is more important to preserving conservative values than K-12 education and nothing shows better the futility of relying on state control to secure those values. As Michael McConnell once observed, the public school ideology seems to be a “a vaguely leftish stew of environmentalism [and] moral relativism.” I would add diversity ideology to today’s mix. Some elements of this stew are hard to distinguish in their structure and truth claims from the theological tenets of religions like pantheism that are particularly in tension with the Judaeo-Christian traditions central to American conservatism. But the notion that conservatives are going to be able to turn public schools for their ends is risible. Teachers stand to the left of the public and the National Education Association is one of the mainstays of the left wing of the Democratic Party.

In contrast, gains for conservatives in K-12 education have come here from breaking up state power and giving more autonomy to individuals to choose schools. The means of choice are various—school vouchers, tax credits for private schools, and charter schools—and my point is not to choose among them here. Any fragmentation of state control allows for greater influence of citizens on the education of their children. Vouchers and tax credits are particularly good for religious conservatives who would otherwise have to pay twice for the education of their children—once for the public schools antithetical to their values and again for their faith-based schools. If school choice is a neoliberal project (a word some of these writers, like the left, use with contempt), traditional conservatives should welcome more such neoliberalism.

Conservatives, particularly religious ones, benefit from the shrinking of state control in education and administration, because it allows them to live their out their own values and to persuade others by example that their values are right. That strategy is not certain to win the culture war but acquiescing to the big administrative state will surely lose it.

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The French Minister for Ecological and Solidary Transition, François de Rugy, was recently forced to resign over public outcry at allegations of unnecessary extravagance at public expense—allegations that were given very wide publicity but which the former minister has since denied. He says that he was the object of a “media lynching.” 

Personally, I am inclined to doubt the honesty of anyone who agreed to head a ministry with such a vague, obscure, and bizarre name. Transition to what, exactly? “Ecological” conjures environmental concerns. As for the word solidary, modern English speakers can confirm that it is not in common use. According to the Shorter Oxford English Dictionary (which informs us that solidary is the exact translation of the French word solidaire), it means “characterized by or having solidarity or community of interests” or in legal parlance “jointly and severally.”

I have some difficulty in construing the phrase “solidary transition.” It has an Orwellian ring, as if implying the practice of some kind of secret psychological engineering, employing tools such as blackmail, torture, and public shaming. Thanks to the operation of the Ministry, people who were formerly individualistic or hostile to one another might become laudably altruistic, and France henceforth a nation of Good Samaritans. 

Courtesy of the British National Health Service, I have quite a lot of experience with the bureaucratic use of phrases that have vague connotation but denote nothing specific. Almost always, they are used as a pretext for the employment and promotion of people whose prolonged and unnecessary education has disqualified them from useful work, and instead prepared them for militant time-wasting and obstruction of others, and for the diversion of useful activity into channels of frustrating meaninglessness so that a deadly combination of frantic busyness and terminal boredom supervenes. This works to the advantage of the powerful: those who are obliged to work hard at nothing are compliant and docile, for they fear to lose their jobs—who else would hire them?

A minister of ecological and solidary transition, then, is prima facie likely to be a person of doubtful integrity, moral and intellectual if not financial. And as far as I can make out, M. de Rugy, irrespective of what he has been accused of doing, has spent his entire adult life (he is now aged 45) swimming in the murky waters of the French political bureaucracy, as a member of that hated and despised class that recently was the object of the Gilets jaunes protests.

The misdemeanor crimes of which de Rugy was accused were—in the history of political wrongdoing—rather minor. He held several dinners of some luxury in his ministry, with allegedly rare wines (none of which, he claims, cost more than $35 a bottle), and involving a great number of lobsters. He also had his ministerial apartment in Paris redecorated at a cost of about $75,000, including the construction of a dressing room (or, on his account, cupboards) at a cost of about $20,000. He also bought—or rather, caused to be purchased—a hair-drier for about $600, first reported as gold-plated (but this was fake news). At no time was it suggested that he had enriched himself personally; moreover, he said that champagne gives him a headache and that he is allergic to shellfish. 

Attending the dinners, however, were said to be some of his friends rather than people who might have business with the ministry—lobbying and that kind of thing. If he did entertain these friends, which he denies, his behaviour sounds more like adolescent showing off than anything else. Unfortunately for de Rugy, though, he made a number of enemies when he was a member and speaker of the National Assembly due to his repeated calls for transparency in the incomes and expenditures of political figures. Revenge is a dish best eaten cold—especially when it is of lobster.

The commentary that followed the exposure of this less than world-shattering scandal fell into two main categories: the Caesar’s-wife-should-be-above-suspicion school and the victim-of-media-lynching-and-hypocritical-English-morality school. France is not Sweden, said an editorial in Le Figaro, the conservative newspaper, although it added that ministers should behave with restraint and good taste. 

In the same newspaper, the philosopher Luc Ferry used the occasion to discourse on the French national vice of envy, which he said the whole affair had brought once more to light. In my observation, money is to the French what sex is to the English—namely, the subject of a great deal of hypocrisy. The French (grosso modo) are simultaneously egalitarian and avaricious, a contradictory combination which can result in only one of the Seven Deadly Sins, envy. 

By implication, then, the significance of the de Rugy affair (according to Ferry) lies in the fact that the ex-minister became the object of envy; that in essence, many people in France would like to eat lobster and drink fine wines in the dining room of a ministry, and therefore hate those who currently enjoy this ethically-questionable job perk. Ferry quoted some very pointed words of no less a patriot than General de Gaulle on the subject of his countrymen’s envy:

Envy is our national vice, it is the worst of the Deadly Sins, it is what projected the angels into Hell because they wanted to be the equal of God. It is worse than pride because pride has a certain nobility, while envy is the feeling of the defeated and rancorous, it is the crime of Cain against Abel, of him who has failed in everything and kills his neighbour because he is successful, it is the anger of losers. If the French did not have this fault, one could forgive them for many things. 

Ferry goes on to say that “As soon as an individual profits, be it by ever so little or however legal, from his position, homo democraticus is ready to rise up against him.” And he says that if a man should rise above others, this same homo democraticus immediately invents, to explain his success, reasons to pull him down: “if he has succeeded or is more famous, it is because he took advantage of connections or immoral methods, or belongs to a powerful lobby, etc.”

No one who has long dwelt among human beings will fail to recognise this, yet it does not quite seem to apply in this case. On the contrary, it sounds more like the defence of a caste to which the author himself belongs than a paean to meritorious endeavour. 

Even if we cannot say that living well is a sign of demerit in itself, neither can we say that it is a sign of merit. There are, after all, such things as ill-gotten gains. At a time when millions of people find themselves in a tight financial corner despite having worked all their lives, I do not find it surprising or appalling that they object to seeing a man who has lived all his life from the public purse, and who raises no objection to public acts of envy, basking in luxury, even if only temporarily (how temporarily remains to be seen). 

There is nothing more unjust than economic equality, but this does not mean that we cannot ask about the legitimacy or source of wealth. In matters of hypocrisy and inequality, distinctions remain important.

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A pure bureaucracy, which is what the British criminal justice system has become in all but name, will do almost anything rather than solve the problem with which it is presented. It will invent any number of complex procedures ostensibly meant to solve a problem, but really just designed to keep itself busy. A problem solved, after all, poses a potential threat to a bureaucracy, insofar as it might be used to justify a reduction in its size whenever the next round of budgetary cuts is proposed.   

A fine British example of a bureaucracy’s tendency to invent extra procedures rather than find a genuine solution to a problem is the so-called Gang Injunction, a civil disposal of youths who commit crimes of violence while belonging to a gang. Various conditions are imposed on them (such as not entering certain areas or associating with certain people), the violation of which may, in theory, lead to their imprisonment.

A young man named Callander O’Brien was recently made subject to one of these orders, whose conditions included that he did not possess a balaclava-type helmet, did not ride a bicycle in public, did not carry a knife, did not run away from a policeman when told to stop, did not enter the London Borough of Islington, and did not contact or associate with anyone on a list of 59 persons. He was allowed to use only a registered mobile telephone and was to show his social media posts, none of which could incite violence, to the police.

Although only 19 years old, Callander O’Brien already had an extensive criminal record going back four years. He had also been made subject to one of these Gang Injunctions before, whose prohibitions—many similar to those in the subsequent one—he had flouted. For having done so, he was sentenced to an eight-week period of imprisonment in a youth prison, a punishment that was suspended for six months.

The elaborate absurdity of this hardly needs emphasis. If it were not for the injunction, would he be permitted to carry a knife, run away from the police, and incite violence on social media? Will it henceforth be a defence against a charge of inciting violence that the accused did not have an injunction against doing so and therefore thought it was permissible?

The difficulties of enforcing such an injunction are obvious. It is hardly to be expected that a policeman could recognise Callander O’Brien on sight, even if his picture were widely distributed. It would follow that either O’Brien would be able to break the injunction against riding a bicycle in public with impunity, or the police would have to stop a hundred youths on bicycles who might be he, giving rise to complaints of unjustified harassment of many innocent young people by the police. This injustice in turn would raise resentment against the latter and help to justify or explain illegal conduct.

The worst of both worlds is the most likely result: there will be some harassment of youth without any deterrence of O’Brien.

It is unlikely that O’Brien is highly- or well-educated, but it is equally unlikely that he could not figure out a way to obtain and use an unauthorised mobile telephone. In fact, we know that he can do so because he already has done so. As for any serious attempt to check that he had not communicated with one or more of the 59 persons named in the injunction, it would require surveillance of them all, a task simultaneously impossible and oppressively intrusive. Only the bureaucratic mind could concoct a laborious task with this unlikely combination of qualities. Taking it seriously would turn the police into a kind of tin-pot Stasi.

How are the police supposed to enforce the prohibition against owning a balaclava helmet? And is the kind of task that police should fulfil? By comparison with this, an injunction against wearing such a helmet in public would be almost sensible, but to ensure that O’Brien did not possess one (presumably for use at some time in the future once the injunction had lapsed) would require the unlimited right, along Gestapo lines, to enter and search his home. Even in these increasingly authoritarian times, it is unlikely that such powers would ever be exercised, and therefore Callander O’Brien knows perfectly well that, in more than one respect, the injunction against him is a dead letter—and he would know it even if he had not already experienced the lack of consequences for breaking a similar, previous injunction. In effect, though probably ill-educated, he is more intelligent than the entire British legislature, judiciary, and police force put together, and can outwit them easily. Nevertheless, a policewoman recently told the press, either through naivety or typical apparatchik bad faith, that “Gang injunctions are a powerful tool used in our efforts to crack down on gang crime and violence in our communities.”

What accounts for this ridiculous charade that is both ineffectual and totalitarian in its implications? Part of the problem is in the bureaucracy’s need to appear to be doing something without actually doing anything. But there is something deeper: namely a concerted drive, going back decades, to find alternatives to prison at all costs—including the cost of high levels of violent crime, up by nearly a hundred times since 1950.

It is true, of course, that no one wants a society that is peaceful and secure only because of the fear of real punishment, and the fact is that most people refrain from committing crimes for other reasons. We do not rob, steal or assault even when we could get away with it. But what is true of most people is not true of everyone, and people vary in their susceptibility to impulse and temptation. It is the susceptible who have to be deterred and, if necessary, incapacitated. The way the criminal justice system has responded to Callander O’Brien neither prevents him from committing further crimes nor deters anyone like him from following suit.

The police, of course, will be able to claim it as a success, but with successes like this, abject failure itself is glorious triumph. The so-called Gang Injunction is a perfect bureaucratic instrument: it makes work and avoids it at the same time. And it helps to make our society a little more totalitarian.    

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That power corrupts is an adage known by all—though how far it is the corrupt in the first place who seek power is an open question. Does the opportunity make the crook, or does the crook make the opportunity? Until a double-blind trial in real life conditions be performed, there is probably no definitive answer to this question; and such a trial will never be performed until the powerful are chosen at random.

The possession and exercise of power not only corrupts: more fundamentally, it addles the judgment. Sooner or later, the powerful, perhaps believing themselves immune from the normal constraints of human existence, take decisions that almost everyone of merely average capacity can see are mistaken or worse than mistaken. The powerful cease to be able even to act in their own self-interest.

In Britain, a Member of Parliament called Owen Paterson was found to have lobbied on behalf of companies from which he received $130,000, in defiance of the rules against such conduct. (One of the companies was subsequently granted contracts, worth hundreds of millions, without even going through a tendering process.) Mr. Paterson was suspended from Parliament, but the Prime Minister, Boris Johnson, intervened to try to prevent this sanction against his supporter and former colleague.

Personal loyalty is an admirable quality, but in a case such as this should have been confined to the private sphere of life. Probity should trump loyalty. Instead, Mr. Johnson sought to save Mr. Paterson’s political career by attempting to change retrospectively the rules which this Member of Parliament had breached, with spurious claims that they were unfair. Mr. Johnson succeeded in getting a motion through parliament to this effect, though about a third of his own Members of Parliament either abstained in the vote or voted against the motion. The outcry in the press and elsewhere was so great that he was forced to back-pedal, and Mr. Paterson duly resigned, thus avoiding the ignominy of suspension. This left Mr. Johnson looking not only corrupt, but weak and foolish or even stupid. He had recently been giving the world lessons in ethical environmental politics at the conference in Glasgow, and now he was revealed as a fierce defender of a crude form of corruption.

A week is a long time in politics, Harold Wilson said, and just as long in the public memory. Far greater events than this are soon forgotten; whole wars or catastrophes fade into oblivion within weeks or months and it has long been the case that the media obsess over events for a time and then speak of them no more when something else catches their attention.

Nevertheless, some residue or sediment of an affair such as that of Owen Paterson will remain. Not all Mr. Johnson’s famous bonhomie will efface the impression that he is corrupt, or at least the firm friend of corruption. He will never be able to pose as an honest man for fear of the subject coming up again and being used against him. And his judgment, even in small matters, was already highly questionable. Having taken conspicuously luxurious holidays at rich friends’ expense (in return for what favours? the average citizen is bound to ask), he also claimed that he could not “manage” on his Prime Ministerial salary, which is beyond the wildest dreams of 99 per cent of the population. Even if it were true that, thanks to his philoprogenitive propensities and other expensive tastes, he could not manage, one might have thought that elementary self-interest or an instinct for self-preservation, or even common decency, would have prevented him from saying so. Perhaps he counted on the weakness of his opposition to preserve him from the consequences of saying the first thing that came into his head, but this is not wise in a system in which people are apt to think that any alternative must be preferable to the dissatisfactions that they already endure. It is but a short step from a reputation for devilry to a reputation for being a devil.

However, our politicians do not emerge by spontaneous generation, like Venus emerging from the sea. They both shape and are shaped by the society in which they live, with which they have a relationship that I cannot but describe as dialectical. You cannot expect them to have virtues that are otherwise absent, or at any rate uncommon, in their society; and in the case of probity, once it starts to decline even as an ideal, its decline accelerates.

It is probably impossible to measure the prevalence of probity in any society, but my impression is that, with the creeping, or galloping, bureaucratisation of everything, it has declined markedly in my country within my lifetime. Bureaucracy calls forth euphemism, evasion, and lying as a magnesium sulphate cataplasm draws forth pus from an abscess. The ever-increasing pretence of measurement, combined with the promotion of abstract political or social orthodoxies, leads to cynicism and the devaluation of personal probity.

I first thought about this problem when the government instituted compulsory annual appraisals of doctors, which were largely pro forma. As one might expect from any governmentally-mandated procedure, much of the appraisal had very little connection with any real practical quality or outcome. A doctor was interviewed by another doctor who asked certain questions laid down in advance. (The appraisal of doctors soon became a profession in itself, often higher paid, and always easier, than medical work itself.)

One of the questions asked was, “Do you have any concerns about your probity?” When I was first asked this, I could hardly believe my ears.      

“I will answer that question if you will answer two questions,” I said to my appraiser.

“What are they?” he asked.

“The first is, what kind of person would answer such a question?”

“And the second?”

“What kind of person would ask it?”

He laughed, and said, “Oh, yes, I know, but just answer it so that we get this over with.”

In other words, he was asking, and I was answering, a question merely to fulfil a demand laid down for us as a condition of our employment, though we both knew that the demand was itself absurd—except if it were intended to destroy our probity, the very subject of the question, in which case it had been brilliantly designed. It destroyed, or undermined, two professional people’s sense of probity at a stroke.

Meaningless procedures are therefore, paradoxically, not meaningless. They have metastasized through our lives, so that each of us should feel sullied by them. They destroy our locus standi to distinguish between honesty and its opposite, the licit and the illicit, for they leave no one clean or innocent of grubby compromise. If we lack probity, how can we expect our rulers to have it?

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